New DOL Guidance on “Son or Daughter” Under the FMLA

The U.S. Department of Labor (DOL) has released an Administrator’s Interpretation clarifying the definition of “son or daughter” under the Family and Medical Leave Act (FMLA) as it applies to individuals 18 years or older who are incapable of self-care because of a mental or physical disability. The clarification states that the son or daughter’s age at the onset of the disability is not relevant in determining a parent’s entitlement to FMLA leave. As such, even if a son or daughter suffers a disability at the age of 20, their parents may still be eligible for FMLA leave to take care of them.

The guidance reviews the four-part test to determine whether an adult child is covered by the FMLA. First, the son or daughter must have a disability as defined by the Americans with Disabilities Act. Second, the son or daughter must be incapable of self-care due to that disability. Third, the son or daughter must have a serious health condition as defined by the FMLA. Finally, the son or daughter must be in need of care due to the serious health condition.

The guidance cites FMLA regulations that define “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis” who is either under 18 years old or at least 18 years old but incapable of self-care due to a mental or physical disability. The main takeaway from the guidance is that the date of a disability’s onset is irrelevant in the analysis of whether a son or daughter is covered for purposes of a parent’s FMLA leave.